The applicant in the present case challenges the refusal of the
defendant to grant it access to certain documents relating to
the classification of expanded tobacco for Customs and Excise
duty purposes. Regarding this topic, it points out that it has
a vital interest in knowing why a given product - expanded tobacco
- is treated as smoking tobacco within the meaning of Article
5(1) of Directive 95/59/EC of 27 November 1995, on taxes other
than turnover taxes which affect the consumption of manufactured
tobacco1, and thus as an excisable product. The applicant considers
the product an intermediary product, unsmokable without further
processing, and therefore not excisable. It is stressed that
there has been no published decision determining the issue and
giving the reasons for the classification chosen.

As regards two of the sets of requested documents (a complete
set of documents of the Customs Cooperation Council on the Classification
of expanded tobacco for customs classification purposes and all
the attendance lists of all meetings of the Committee on Excise
Duties, or any other relevant Committee, at which the definition
of 'smoking tobacco' was debated), the applicant submits that
the Commission infringed Article 8(1) and (2) of Regulation(EC)
1049/20012, by not responding within the regulatory time-limits
thereof.

In relation to the full minutes of all meetings of Excise duties,
or any other relevant committee, at which the definition of 'smoking
tobacco' was debated, including the full minutes of discussions
on other agenda points, the applicant claims that the contested
refusal:

- Misapplied the principle of proportionality. In particular,
the Commission made no attempt to confer informally with the
applicant with a view to finding a fair solution, pursuant to
Article 6 of Regulation (EC) 1049/2001

- Has not given due weight to the applicant's interest in receiving
the requested documentation

Moreover, the applicant doesn't accept the Commission's contention
that the Member States would have to be consulted in relation
to the submissions made by them in the minutes. It is the applicant's
position that, in accordance with Article 4(4) of Regulation
(EC) 1049/2001, a consultation with a Member State shall take
place only when it is not clear whether a document shall or shall
not be disclosed. Furthermore, the final decision as to whether
or not a document shall be released remains with the Commission,
and this must be reasoned and clearly justified as falling within
one of the exemptions provided for in the access regulation.

2. API v Commission, Case
T-36/04

Subject-matter: documents submitted to courts

Status: hearing held 28 Feb. 2007

Summary of
pleas:

The applicant is a non-profit organisation of foreign journalists
based in Belgium, aiming to assist its members in reporting back
to their home countries about the European Union. It applied
to the Commission for access to all the submissions made by the
Commission in the course of certain proceedings before the European
Court of Justice and the European Court of First Instance. Such
access was denied by the contested decision.

In support of its application the applicant invokes an infringement
of Articles 2 and 4, paragraph 2, of Regulation 1049/20011. According
to the applicant article 4 paragraph 2 of Regulation 1049/2001
does not justify a blanket exclusion of the Commission's pleadings
from the principle of open access to Community documents, nor
does it give the Commission the right to refuse access to its
pleadings merely because the matter itself or related proceedings
are still pending.

The applicant in these proceedings contests the defendant's decision
denying him access to the reserve list for general competition
A7/A6 COM/A/637 and the individual decisions appointing officials
in Grade A 6 from 5 October 1995.

In support of his claims, the applicant alleges, first, misapplication
of the exception under Article 4(1)(b) Regulation (EC) No 1049/2001
of the European Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council and Commission
documents. 1 That exception concerns privacy and the integrity
of the individual, in particular in accordance with Community
legislation regarding the protection of personal data. The applicant
states, in that connection, that it cannot be considered that
the disclosure of the documents requested could infringe the
privacy of the persons whose names appear in them, since belonging
to the civil service is not a matter falling within the scope
of privacy.

Moreover, to the extent that individual decisions regarding the
appointment of European civil servants are in the public domain,
the applicant alleges infringement of Article 5(b) of Regulation
(EC) No 45/2001 of the European Parliament and of the Council
of 18 December 2000 on the protection of individuals with regard
to the processing of personal data by the Community institutions
and bodies and on the free movement of such data. 2 The applicant
also alleges failure to fulfil the obligation to provide reasons
and breach of the principle of sound administration.

4. Bavarian Lager Company
v Commission, Case T-194/04

Subject-matter: documents concerning a list of persons
lobbying of the Commission; 'privacy' exception

Status: hearing held 13 Sept. 2006

Summary of
pleas:

The applicant company was formed on 28 May 1992 to import German
beer for sale in public houses in the United Kingdom. In 1993
the applicant complained to the Commission about an alleged violation
of Article 28 EC (then Article 30 of the EC Treaty) in connexion
with the "guest beer provision" in UK legislation.
Under this provision breweries are required to allow public houses
bound to them by exclusive purchasing agreements to offer a "guest"
beer from a different brewery. The guest beer had to be a beer
undergoing fermentation in the cask from which it was sold, a
type of beer which is almost exclusively produced in the United
Kingdom. The beer sold by the applicant as well as most beers
produced outside the United Kingdom could not be covered by this
provision and the applicant considered this a measure of equivalent
effect to a quantitative restriction. In a letter of 21 April
1997 the Commission informed the applicant that, in view of a
proposed amendment of the guest beer provision, the procedure
against the United Kingdom had been suspended and would be brought
to a close as soon as the amendment had been adopted.

On 5 December 2003 the applicant requested the Commission, on
the basis of Regulation 1049/20011, to grant it full access to
the minutes of a meeting on this matter, which took place on
11 October 1996 between representatives of the Commission, the
United Kingdom government and breweries. In particular, the applicant
asked the Commission to reveal the identity of certain persons
whose names had been blanked out in the minutes previously disclosed
to the applicant. The Commission rejected the applicant's request
and confirmed its refusal in a letter of the Secretary General
to the applicant, dated 18 March 2004. In support of its refusal
it invoked the need to protect personal data of the persons present
at the meeting, as well as a potential risk to the Commission's
ability to carry out investigations in such cases if the identity
of persons giving information to the Commission were to be disclosed.
By its application, the applicant requests first of all a declaration
against the Commission's decision to suspend the procedure against
the United Kingdom. In this respect, the applicant invokes a
violation of Articles 28 and 12 EC.

Concerning the Commission's refusal to grant it access to the
documents requested, the applicant submits that Article 2 of
Regulation 1049/20011 obliges the Commission to make full disclosure
of the persons who attended the meeting in question, and that
none of the exceptions contained in Article 4 apply. The applicant
further contends that the exception in Article 4 paragraph 3
may be disregarded because there is overwhelming public interest
in disclosure.

By a letter dated 23 February 2004 the applicant applied to the
Council in accordance with Article 6 of Regulation 1049/20011Official
Journal L 145 , 31/05/2001 P. 43 - 48 and sought information
with respect to an item entitled "WTO-Sustainability and
Trade after Cancun" on the agenda of the "Article 133
EC" Committee for a meeting of its Deputy Members on 19
December 2003. By letter of 17 March 2004 the Council indicated
that, in relation to the applicant's application, it had identified
a note of the Commission covering a wide range of issues concerning
the follow-up to the Cancun conference which, however, it declined
to disclose on the basis that disclosure would undermine the
European Union's commercial interests and would be prejudicial
to economic relationships with third countries. It further informed
the applicant that no minutes of meetings of the Deputy Members
of the Committee were drawn up.

The applicant made a confirmatory application in accordance with
Article 7 paragraph 2 of Regulation 1049/2001 on 5 April 2004.
By the contested decision the Council maintained its refusal
on the grounds it had already indicated.

In support of its application to annul the contested decision
the applicant contends that the Council has erred in its assessment
of the sensitivity of the relevant information, has failed to
provide adequate reasons for its refusal and has failed to apply
properly the principle of proportionality in assessing the possibility
of partial disclosure.

The applicant previously brought an action before the Court of
First Instance (Case T-3/00) 1 for annulment of the refusal of
the Council and the European Central Bank to allow him access
to the 'Basle/Nyborg' Agreement on the reinforcement of the European
Monetary System. The applicant argued that he needed the agreement
in order to complete the doctoral thesis that he was writing.
In his present action, the applicant pleads that the refusal
of the Council and the European Central Bank to allow him access
was unlawful for the same reasons as those pleaded by him in
the previous action. In addition he pleads that, by reason of
the refusal, he has been unable up until now to complete his
doctoral thesis. He submits that as the possessor of a doctoral
thesis specialising in economic and monetary law he would succeed
in obtaining a job as a lawyer in an international body or organisation.
He thus considers that he has suffered material damage equal
to the difference between (i) the salary that he would have received
from such a job in the period from April 2001 - when he would
have completed his doctoral thesis and found such a job - until
three months after delivery of the Court of First Instance's
judgment and (ii) his past and future earnings over the same
period working as a lawyer in Greece. By his action he thus seeks
compensation for that material loss and the award of damages
for non-material harm.

In support of its claims, the applicant argues that the refusal
of its request for access to documents is unlawful inasmuch as
it stems from misapplication by the Commission of the procedural
and substantive rules governing the Subject-matter. In particular:

- the Commission infringed the procedural time-limits laid down
in Regulation (EC) No 1049/2001 1 and Decision 2001/937 2 and
refused access on the basis of belated opposition by certain
Member States;

- the measure is manifestly contradictory in so far as the delay
was caused by the need to consult the Member States. Yet the
Commission itself maintains that, irrespective of the opposition
by those Member States, it would in any event have refused access.
Thus the Commission is also in breach of the relevant rules which
required it to reach an unfettered decision, since it had already
made up its mind as to the final decision to be adopted;

- the Commission relied on one of the exceptions provided for
in Regulation No 1049/2001 to refuse access, without putting
forward any ground in that regard; in any event, as to the exception
relied on (protection of commercial secrecy under Article 4(2)
of Regulation No 1049/2001), the applicant notes that the conditions
for the application of that exception do not exist since in the
OCM banana sector there cannot be said to be any commercial secrets
to be protected, in the terms stated by the Commission;

- the Commission failed to rule in regard to a series of documents
mentioned in the applicant's request for access, thereby infringing
the principle of sound administration;

- the Commission did not grant partial access in respect of the
documents from the States which did not oppose disclosure.

Regarding the Commission(s refusal to allow him access to the
main contract, the applicant invokes first of all a manifest
error in law and fact, in that the Commission did not make clear
whether the author of the document, Athens International Airport,
is a third party other than a Member State or whether it is an
authority of the Greek State and consequently whether, paragraph
4 of Article 4 of Regulation 1049/20011 or paragraph 5 of the
same article should apply. The applicant also submits that the
Commission provided no evidence that it has considered granting
access without consulting the third party. He also considers
that by opting for an extensive interpretation of the notion
of protection of commercial interests the Commission has violated
the principle of the widest possible access to documents, set
out in Article 1 (a) of Regulation 1049/2001.

In connexion with the same document, the applicant also claims
that the Commission has violated Article 4 paragraph 4 of Regulation
1049/2001 and Articles 5 paragraphs 3 and 4 of Decision 2001/9372
by failing to assess the justification advanced by the third
party for refusing to consent to disclosure, and failing to reveal
to the applicant elements of that assessment. The applicant also
argues that the Commission violated Article 4 paragraph 6 of
Regulation 1049/2001 by failing to consider the possibility of
granting partial access and that, finally, it has violated its
duty to state reasons for its decision.

By its contested decision the Commission also refused access
to the invoices and final report on the completion of the airport
on the grounds that they are examined in the framework of an
audit commissioned by DG Regional Policy and not yet completed.
Concerning this part of the Commission(s Decision the applicant
submits that the Commission misinterpreted Article 4 paragraph
2 of Regulation 1049/2001 and committed a manifest error of fact
in considering that the audit in question falls under this provision.
He also invokes a violation of the principle of the widest possible
access as well as violation of Annex V to the Commission decision
granting assistance from the Cohesion Fund, which provides that
Member States concerned shall ensure open and easy access to
relevant information requested by the public. He also submits
that the Commission failed to consider partial access.

Concerning the Commission(s refusal to grant access to the costs
of the construction items the applicant submits that the Commission
mistakenly considered that this application did not constitute
an application for access to documents and thus violated Articles
7 and 8 of Regulation 1049/2001.

Finally, the applicant invokes a manifest lack of good faith
and a violation of the principle of good administration by the
Commission, which failed to indicate, in its contested decision,
when it expected to be in possession of the sub-contracts.

9. CO-FRUTTA v. Commission
Case T-446/04

Subject-matter: see Case T-355/04, above

Status: no hearing yet

Summary of
pleas:

In support of its complaints, the applicant submits that the
Commission could no longer adopt the contested decision given
that an (implied) decision rejecting the confirmatory application
had already been taken by reason of the absence of a reply.
Furthermore, the applicant puts forwards other arguments largely
the same as those in the action brought in Case T-355/04 (OJ
C 262 of 23 October 2004).

The applicant is a doctoral research fellow and is carrying out
a project on the impact of globalisation on Community environment
and development cooperation law and policy. For this, the applicant
has asked for access to documents in order to review the background
to recent legislation about genetically modified organisms (GMO).
Following the request of the applicant, access to only part of
the documents was granted.

In support of her application, the applicant submits an infringement
of Article 8 of Regulation No 1049/20011 and a failure to state
reasons in accordance with Article 253 EC. According to the applicant,
the Commission has given an incomplete reply to the request for
access and did not identify all the documents included within
its scope. The applicant claims that other documents exist, for
which no reasons for refusal of access have been given and no
exceptions have been invoked.

The applicant furthermore submits that the Commission erred in
law and misapplied the exception under the second paragraph of
Article 4(3) and the third indent of Article 4(1)(a) of Regulation
No 1049/2001. The applicant also submits that the Commission
failed to state reasons and erred in considering that disclosure
would seriously undermine the decision making process, that there
is no overriding public interest in disclosure of the documents
and that the documents in question would weaken the
Commission's position before the WTO panel on the de facto moratorium
on the approval and marketing of biotech products.

The applicant also submits an infringement of the principle of
proportionality and a failure to state reasons in not considering
partial access to the documents.

When it informed the applicant of the decision of 16 March 2004,
allegedly on the grounds of protection of the commercial interests
of Caremar the Commission did not, when giving the reasons for
its decision, disclose information on the operating costs of
Caremar's commercial activities, in particular the extra costs
incurred by the connections to the island of Capri carried out
under public service obligations and the annual payments made
for that service by the Region of Campania.

The applicant has always operated similar passenger transport
services on the same Naples Beverello-Capri route under public
service obligations without, however, receiving any subsidy to
offset the extra costs inherent in those obligations and, as
a result, it regards that treatment as discriminatory.

In the light of the applicant's legal interest in bringing proceedings
and the need to acquire full knowledge of the Caremar decision
within the shortest time for the purposes of protecting its own
interests and of any consequent challenge to the decision of
16 March 2004, the applicant asked for access to information
concerning the extra costs of the public service obligations
borne by Caremar for the connections to the island of Capri and
the amount of the aid relating thereto.

By decision of 3 February 2005 the Commission refused access
to the information requested by NLG, essentially pleading grounds
of protection of the commercial interests of Caremar.

Challenging that decision, NLG submits that the Commission committed,
inter alia, a serious error of law by failing to have regard
to the provisions of its Communication C(2003) 4582 of 1 December
2003 on professional secrecy in State aid decisions, 3 which
expressly lays down in paragraph 17 the requirements of transparency
and of disclosure of information regarding the costs of public
services inasmuch as it is not considered confidential or protected
as a business secret.

The applicant contests the decision of the Commission to refuse
the applicant access to certain documents and tape recordings
related to the preparation of the 30th adaptation to technical
progress of Council Directive 67/548/EEC of 27 June 1967 on the
approximation of laws, regulations and administrative provisions
relating to the classification, packaging and labelling of dangerous
substances1. More in particular, the applicant's requested access
to the audio recordings or transcripts of the meeting of the
specialised experts in the field of reproductive toxicity on
the classification of boric acid and borates.

In support of its application, the applicant submits that the
defendant made a manifest error of assessment and infringed Articles
4(1)(b) and 4(3) of Regulation 1049/20012. According to the applicant,
the defendant erred in stating that access to the documents would
undermine the integrity of the specialised experts consulted
and would expose them to external pressure. The applicant claims
furthermore that the defendant erred in applying the exception
relating to the protection of the Commission's decision making
process and in deciding that there was no overriding public interest
in disclosure.

The applicant finally invokes a violation of the principle of
proportionality in failing to grant partial access to the audio
recordings.

13. Internationaler Hilfsfonds
e.V. v. Commission (Case T-141/05)

Subject-matter: decision-making exception

Status: no hearing yet

Summary of
pleas:

In the contested document the Commission denied the applicant
unrestricted access to the European Commission's file relating
to Contract LIEN 97-2011 by reference to Article 4(1)(b) and
the second subparagraph of Article 4(3) of the Transparency Regulation
1 and to the Data Protection Regulation 2.

The applicant claims that the contested decision infringes Article
4(3) of the Transparency Regulation. The applicant is of the
opinion that the reasons given by the European Commission for
its refusal to grant unrestricted access to the file concerning
Contract LIEN 97-2011, namely that unrestricted access to the
file would impair the decision-making process, are invalid. The
applicant further contends that there is public interest in the
disclosure of the documents in question. The applicant also questions
the applicability of Article 4(1)(b) of the Transparency Regulation.

The applicant complains furthermore of the refusal to grant unrestricted
access to the file by reference to the Data Protection Regulation.

In addition, the applicant submits that the European Commission's
action is arbitrary.

14. Pablo Muñiz v.
Commission (Case T-144/05)

Subject-matter: customs documents; decision-making
exception

Status: no hearing yet

Summary of
pleas:

The applicant is a lawyer specialising in advising clients on
customs related issues. In order to best advise his clients the
applicant addressed, on 13 October 2004, a request to the Commission
for access to the minutes of the September meeting of the Customs
Code Committee - Tariff and Statistical Nomenclature Section
as well as for access to certain TAXUD documents.

This request was refused on 1 December 2004, on the basis of
Article 4.3 of Regulation 1049/2001. The applicant requested
a review of the initial decision on 15 December 2004. The contested
decision was issued as a result of that request, and confirmed
the previous decision to refuse access.

The applicant contends that the contested decision infringes
Article 4.3 of Regulation 1049/2001. According to the applicant,
the reasons provided for refusing access, namely that disclosure
of the requested documents would seriously undermine the Commission's
decision making process, are not valid grounds under this provision.
The applicant also contends, in the same context, that the contested
decision erroneously reasoned by reference to a category of documents
rather than evaluate the content of each one of the requested
documents.

The applicant further considers that Article 4.6 of the same
regulation was violated, in that the Commission refused even
partial access to the requested documents. He also argues that
the contested decision circumvents Article 2.1 of that regulation
by leading to a systematic refusal to disclose internal documents,
on the sole ground that the relevant file is not closed.
Finally, the applicant considers that an overriding public interest,
consisting in the need for interested parties to have a better
understanding of the decisions adopted on tariff classifications
matters, justified disclosure of the requested documents.

Subject-matter: documents concerning state aid; Member
State veto and exceptions for inspections, etc. and decision-making

Status: no hearing yet

Summary of
pleas:

The Commission has, in the contested decision, confirmed its
refusal to grant the applicants access to a copy of the non-confidential
version of all documents collected during the proceedings and
investigations leading to the adoption of the Commission(s decision
of 14 July 2004 in State Aid case No. CZ 46/2003 - Czech Republic
- Investicní a postovní banka, a.s. (IPB)/Ceskoslovenská
obchodní banka, a.s. (CSOB).

The applicants submit that the Commission wrongly applied the
exception in Article 4(2), third indent, of Regulation 1049/2001
1 to all the documents in question and that the Commission, amongst
other things, failed to carry out an individual assessment of
the content of the documents.

With regard to the documents originating from the Czech authorities
and the Commission(s internal documents, the applicants claim
that the Commission misapplied the exceptions laid down in Article
4(3), second subparagraph, and Article 4(5) of the Regulation.

The applicants moreover submit that the Commission erred in refusing
to grant partial access to the requested documents under Article
4(6) of the Regulation and that the Commission failed to provide
sufficient reasoning in accordance with Article 253 EC.

Finally, the applicants are of the opinion that the exceptions
in Article 4(2), third indent, and Article 4(3), second subparagraph,
of the Regulation should be set aside and that access to the
documents should be granted for the benefit of the overriding
public interest in the protection of the integrity of the European
Union(s State aid and enlargement policies.

The applicant has brought two actions for annulment before the
Court of First Instance, the first (Case T-279/04) 1 being against
the Commission's decision of 7 January 2004 declaring the concentration
operation whereby Lagardere was to acquire exclusive control
of the assets of Vivendi Universal Publishing, subject to honouring
the latter's undertakings, compatible with the common market
(COMP.M/2978 - Lagardere/Natexis/VUP), and the second (Case T-452/04)2
being against the Commission's decision of 30 July 2004, concerning
the approval of Wendel Investment as the acquirer of the assets
surrendered in accordance with the decision of 7 January 2004.

On 27 January 2005, the applicant asked the Commission, on the
strength of Article 255 EC and Regulation No 1049/2001, for access
to certain documents concerning that case. The Commission sent
only one of the documents requested, maintaining that the others
were covered by exceptions to the principle of public access
to documents. On 18 February 2005, the applicant made a confirmatory
application, which was likewise rejected by the Commission on
7 April 2005.

In support of its action against that latter decision, the applicant
argues that it is void because it was based on an examination
by categories of document requested and not on a specific and
individual examination of each document.

It also argues that the Commission made clear errors of assessment
in applying each of the exceptions under Article 4(2) of Regulation
No 1049/2001, which it relied upon in dismissing the request.
More particularly, the exceptions concern protection of the purpose
of investigation activities, the protection of commercial interests,
the protection of the decision-making process, and the protection
of the Commission's legal opinions. In the applicant's submission,
the Commission has not applied any of those exceptions correctly.

The applicant also claims that the Commission has infringed its
right to at least partial access to the documents concerned.
Finally, the applicant claims that the proportionality principle
has been infringed because the Commission did not balance the
exceptions referred to in Article 4(2) of Regulation No 1049/2001
against the higher public interest justifying disclosure of the
documents requested.

The applicant, then named "Airtours plc.", brought
an application requesting the annulment of the Commission's decision
regarding the applicant's merger with another company. By its
judgment in Case T-342/99, Airtours/Commission, the Court annulled
that decision, as requested by the applicant. The applicant then
brought another application (Case T-212/03, MyTravel/Commission),
for damages allegedly incurred by reason of the Commission's
errors and breaches of Community law in its handling of the case
leading to the annulment.

In the context of those second proceedings, the applicant, relying
on Regulation 1049/20011, requested the Commission to grant it
access to the report prepared by the Commission's services following
the judgment, as well as a number of drafts, working papers and
notes, either relating to the preparation of that report or contained
in the case file of the Commission's decision, which had been
annulled. By the contested decision, the Commission rejected
the applicant's request, considering that the exceptions in Article
4, paragraphs 2 and 3, of Regulation 1049/2001, relating to the
protection of court proceedings and legal advice, of the purposes
of inspections, investigations and audits or of the Commission's
decision making process, should apply.

The applicant requests the annulment of this decision. It challenges
in detail the Commission's assertions that certain documents
should not be disclosed in order to protect court and legal proceedings,
and considers that it should not be open to the Commission to
rely on the need to protect historic court proceedings, such
as the ones in Case T-342/99, already closed, in order to resist
the disclosure of documents which are central to the achieving
of a just result in separate, ongoing proceedings.

With regard to the protection of investigations, the applicant
contends that the Commission's appraisal of a proposed merger
is not an investigation for the purposes of the exception and
that the exception does not apply to internal enquiries nor does
it in any event apply to enquiries which are closed. Further,
the applicant considers that disclosure would not undermine the
purpose of investigations in similar merger procedures. The applicant
also challenges the Commission's assertion that an internal audit
aimed at modernising administrative procedures could not be independent
if its recommendations and findings were made public.

Finally, the applicant considers that the Commission has not
established that disclosure would seriously undermine its future
decision-making process, since the report of which disclosure
was requested does not relate to the way decisions will be taken
in future but to the way in which they were wrongly taken in
the past, transparency could not be equated to undue external
pressure and the disclosure requested would have no impact on
the stability of the Community legal order.
The applicant finally argues that there is an overriding public
interest in the disclosure of the requested documents.

19. A.S.TER v Commission (Case
T-409/05)

Subject-matter: exception inspections, investigations
and audits

Status: no hearing yet

Summary of
pleas:

The applicant in the present action, a limited liability company
most of whose capital is held by the Municipality of Genoa, seeks
annulment of the defendant's decision rejecting access, under
Article 7(e) of Regulation (EC) No 1049/2001 1 of the European
Parliament and of the Council of 30 May 2001 regarding public
access to European Parliament, Council and Commission documents,
to the complaint (and annexes thereto) sent to the Commission
on 21 February 2005, which gave rise to an investigation which
may lead to initiation of formal infringement proceedings against
the applicant.

Access was withheld on the basis that disclosure might have had
an adverse impact on the conduct of the investigation by the
Commission.

In support of its claims, the applicant alleges infringement
of Article 4(2) of Regulation No 1049/2001, of the principle
audi alteram partem and of the principles of transparency, cooperation
and participation in proceedings, and also lack of an adequate
statement of reasons.

It submits in that regard that there is, despite the defendant's
claim, no need to withhold distribution of documents relating
to the infringement proceedings in order to avoid undermining
the inquiries, but that, on the contrary, it is necessary for
the purpose of such inquiries for the procedure to be conducted
with the greatest transparency and cooperation, so that the Municipality
of Genoa and the applicant can produce the documentation required
for conduct of the investigations.

Furthermore, since the applicant is a party to administrative
proceedings before the defendant, the contested decision infringes
the principle audi alteram partem.

The applicant adds that objections to rights of access must be
interpreted restrictively and in the light of the principle entitlement
to information and the principle of proportionality.

20. Navigazione Libera del
Golfo v Commission (Case T-444/05)

Subject-matter: see Case T-109/05 above; also 'Member
State veto' issue

Status: no hearing yet

Summary of
pleas:

The pleas in law and main arguments are similar to those put
forward in Case T-109/05 Navigazione Libera del Golfo v Commission.
It should, however, be stated that the contested decision in
Case T-109/05 is based on Article 4(2) of Regulation No 1049/2001,
whereas the decision at issue in this case is based on Article
4(4) and (5) of that regulation. Accordingly, it was not Caremar
that was consulted, as 'third party author' of the documents/data
to which access was requested, but rather it was the Italian
authorities, which did not issue the documents of the case and
had no concerns relating to commercial interests, that were consulted.

Further, that consultation was carried out in an artificial manner,
given that the Member States have exclusive competence together
with a right of veto which is binding on the Commission.

Status: no hearing yet; parallel case before
the Court of Justice (Case C-406/06) dismissed as inadmissible.

Summary of
pleas:

In the contested decision, the Commission refused the applicant's
request for access to document SEK (2005) 420 on the basis of
the second indent of Article 4(2) of the transparency regulation.
This document contains a legal analysis of the Community's competence
in the field of the retention of personal data by operators of
electronic communications networks.

The applicant alleges, first, breach of Article 10 EC in conjunction
with the second paragraph of Article 1 EU. The applicant takes
the view that the Commission is under an obligation to grant
it access to the document which it has applied for in the framework
of the reciprocal duties of genuine cooperation in accordance
with the principle of transparency, on the ground that there
is a strong public and parliamentary interest in full disclosure
of this document.

The applicant further alleges breach of Article 255 EC and Article
2(1) of the transparency regulation. It submits in this regard
that the Commission was wrong to base its refusal to grant access
to the document applied for on the second indent of Article 4(2)
of the transparency regulation, since disclosure of the document
would not have prejudiced the Commission's legal advice. The
defendant therefore incorrectly exercised its discretion

22. Leclercq v Commission
(Case T-299/06)

Subject-matter: access to an extract from a database
concerning EC staff

Status: no hearing yet

Summary of
pleas:

By this action, the applicant seeks the annulment of the decision
of 27 July 2006, adopted by the Secretary-General of the Commission,
rejecting her confirmatory application for access to an extract
from the databases containing information relating to the Commission's
staff. The reasons for refusal put forward by the Commission
were that the application was outside the scope of Regulation
No 1049/2001 on the ground that, in this case, it was not an
application for access to an existing document held by the institution,
within the meaning of that regulation.

In support of her action, the applicant relies on two pleas in
law. The first alleges infringement of Article 3(a) of Regulation
No 1049/2001 on the ground that, in the contested decision, the
Commission excludes a database from the meaning of 'document'.
The applicant claims that the Commission made a manifest error
of assessment by making such exclusion which is not provided
for by the regulation and goes against the broad interpretation
which should be given, in the applicant's submission, to the
meaning of 'document' in Regulation No 1049/2001.

The second plea in law alleges infringement of Article 4 of Regulation
No 1049/2001 and of the duty to state reasons on the ground that
the Commission did not state in the contested decision how the
disclosure of the document sought would undermine a public or
private interest so that it could be refused on the basis of
one of the exceptions in Article 4 of the regulation.

The applicant claims that the Commission's conduct, which she
alleges to be unlawful because contrary to Regulation No 049/2001,
is capable of giving rise to its non-contractual liability under
the second paragraph of Article 288 EC. She therefore claims
compensation for the losses, both pecuniary and non-pecuniary,
which the Commission's conduct has caused her.

Cases pending before the EU Court of
Justice

1. Sweden and Turco v Council
(Cases C-39/05 P and C-52/05 P)

Subject-matter: appeal against judgment in Case T-84/03,
Turco v Council, concerning access to Council legal service opinion
on draft legislation

Status: no hearing yet

Judgment
appealed against: Case
T-84/03

2. Sweden v Commission (Case
C-64/05 P)

Subject-matter: appeal against judgment in Case T-168/02,
IFAW v Commission, concerning the 'Member State veto' on access
to Member States' documents

Status: hearing held 16 Jan. 2007

Judgment
appealed against: Case
T-168/02

3. Heinrich (Case C-345/06)

Subject-matter: reference from national court concerning
interpretation of access to documents Regulation

Status: no hearing yet

Questions
referred:

Do documents within the meaning of Article 2(3) of Regulation
(EC) No 1049/2001 of the European Parliament and of the Council
of 30 May 2001 regarding public access to European Parliament,
Council and Commission documents include acts which are required
to be published in the Official Journal of the European Union
pursuant to Article 254 EC?

Do regulations or parts thereof have binding force if, contrary
to the requirement of Article 254(2) EC, they are not published
in the
Official Journal of the European Union?